I have had tall trees at the bottom of my garden screening an unsightly office building for 30 years. In 2009 a developer was given planning permission to build 14 houses in its place, one abutting my boundary. The houses are now sold and the new owner has objected to the height of the trees under the high hedges act and the council have served notice of an ASBO on me. The Council is now deciding if they will make me remove them. Removal of the screening will make my garden visible to 3 of the new homes and I will be able to see 7 of the new homes from my patio. What can I do?????

The following text is from the letter is sent to the council putting my side of the case. I have redacted personal information. My neighbour has also written.
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I am writing regarding your letter dated 10th September, 2015. I am disappointed that the Council is acting on this complaint given the circumstances concerning the trees at the boundary of my property. I believe that if the Council upholds this complaint I will not be able to continue to reasonably enjoy my property and I will suffer a loss of amenity resulting in financial loss.

For background, my wife and I are retired now, the children have left home and we have downsized and live at the address above. We still own the property and have rented it out to supplement our income.

I am sure you know that ****** built a high density development of fourteen houses in the place where ************ and its surrounding car parks once stood. We bought ***************** as our family home in 1993 and the four trees in question were there and in excess of 8 metres at that time. The trees were planted strategically to screen the view of ****** from our property, which is on three levels rising up, going westwards towards *****, and in an elevated position in relation to the recently built property at *********. The privacy of our garden is one of the most attractive features and the view from our rear facing windows and rear patio is currently protected by these trees. Without the trees we have a clear view from our patio of the houses on ******* and *********which is in an elevated position and each of these properties would have a clear view of our patio, conservatory and rear elevation as well as *********.

When *********** made their planning application, we indeed felt fortunate that our trees provided this screening for without them our house is in sight from 4 gardens, at least 6 windows and 4 houses in the ****** development and of course our views would be significantly impacted. Without these trees, I believe the value of our property will be reduced. It is a matter of record that objections were raised to the planning application at the time by us and our neighbours as to the height, density, proximity and boundary screening of the proposed properties, including specifically, *********** at our boundary. In fact, the houses are 3 stories high and ground levels were set down to accommodate the planning height restrictions. I refer to objections raised to planning application ***** by myself on 19/1/12, ******** in emails to ****** dated 8/3/12, 9/3/12. We were led to believe that the planning proposal made was within the planning guidelines so we had no option but to accept the planning permission given. We have made the best of the situation since then. These four trees have significantly mitigated the impact of the development.

When I was approached by ***in May I was surprised by what he said. Amongst other things he said he worked for ***** and because ***** wasn’t selling he had bought it with discount from his employer in October 2013. My view is that It may have been less desirable than than the other homes in the development because of the small north facing garden and the proximity to our boundary on the west side and our neighbours boundary, on the north side resulting in the “hemmed in feeling” and lack of light in the garden and house. *** has subsequently recently been granted planning permission for a side extension for the kitchen and a rear extension taking more space in the garden presumably creating more shade. He does seem to be relying on the Council ruling in his favour on this complaint to raise the value of his house which I am sure will be at the expense of mine.

I would like to emphasise the following key points:

Our trees were in situ when ***** bought the property in October 2013. They provide privacy for us in our house and garden and for our neighbours at ****** - not just from ***** house but from the other three adjoining properties and the residence on *****.
**** property has a small garden which is north facing, is in a low lying position and surrounded on three sides by high fencing, on one side by the retaining system designed and installed by Berkeley Homes, and of course trees in the neighbouring gardens including ours. I think this is why the garden seems “hemmed in”. The house was bought by *** with full knowledge of this situation. You will also notice there are houses blocking light and sun on the east, south and west sides at different times throughout the day which naturally is made worse in the winter months.
The government calculator does not take the various levels and these existing obstacles into account. I have constructed a model of the site in software and modelled shadows at different times of the day and months through the year and the 2.5 meter fence alone provides significant shade in the early afternoon. Earlier in the day **** provides shade. Later in the day ***** restrict the sun. In short I don’t think the light and sun is made significantly worse by the trees and would not be improved by cutting them back i,e, the trees do not make the problem worse most of the time.
We did not object as vigorously as we might have at the time of the ********* planning application specifically because the trees, our screening, was in place.******* takes away at least as much light from our garden in the morning as our trees do in the afternoon.
I am also concerned that while the extensions are being built at ** the build will be in the root protection zone of my trees which may result in damage to the root system of the trees. This risks were raised at the time of the planning application. This has happened to my neighbours trees at ***** which forced them to remove them.
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If the LA rules against me I will definitely appeal but I feel the case would be made better by a solicitor. Opinions???? How would I take it out of the Planning Authority hands and turn it into a Civil Matter for the courts???

Sorry the grounds are
1. The garden feels hemmed in by surrounding trees. My neighbour has tree on the north side of his garden boundary. My trees are on the west.
2. Light is reduced in his rear rooms on ground, first and second floors.

He has used the government calculator to "prove\" the trees should be 2.7 metres. Theey are currently between 8m and 12m

Paragraph 4.41 suggests that your concerns about privacy will be listened to. I suggest you get all the paperwork to do with the planning application, in particular looking at what mention was made about preserving the privacy of neighbouring properties.

However paragraph 5.89 confirms that you can't use the fact that your hedge came first as a defence.

I did review guidance. I don't think it will be treated fairly because the tree department are part of the planning team that gave planning consent for the houses in the first place. It seems wrong that the trees are shown on the approved plans becsuse they provided privacy then subsequently they are "condemned". Frustrating.. The guy bought the house cheap with the full knowledge of the sunken garden and trees on the boundary yet I'm the villian.

Well, firstly the 2m will be measured from the natural height of the land, so not from the sunken height of your neighbour.

Secondly, you sound very pessimistic, and I wonder why you've come on to this forum if you've already given up.

Can't you see the importance of any linking, in the planning application, of the trees to the privacy issue? Lets assume that the planning application stated that there should be no concerns about your privacy, as your trees provide full screening. On that basis you may not have objected to the proximity of the development.

jcpreston22 wrote:I have had tall trees at the bottom of my garden screening an unsightly office building for 30 years.

Are these trees still identifiable as individual trees or have they merged to form a hedge?

What arborlad means is that if you can thin out a dense row of trees, that might still give you the privacy you crave (by blocking the views from your neighbour's windows) but may no longer be a hedge, and therefore fall outside the legislation.

Hello
Thanks for the replys. I must admit my earlier posting did sound negative but I am determined to resist this because I think it's wrong. The challenge is basically figuring out the best way.

I have made the point about the planning objections and have access to all the drawings that the consent was based on so i think ibhave made the link between my privacy and the trees and ihave told the council that the trees were shown on the drawings they approved.

The trees have grown together but could be thinned to be four individual trees at trunk level but at the 8 meter level they are not easily seperable. According to the definition of the high hedge would this mean they would be seen as 3 lyllandi and one eucalyptus rather than a hedge?

Much of your letter is not material to what the Council Officer will have to decide. Stick to the material issues. Also, it's not about rebutting the grounds of complaint. It's not for you as the hedge owner to tell the Council Officer how your neighbour should feel about your hedge. At best this will smack off contempt for your neighbour, and at worst you are not making the case as to how the hedge benefits you. The grounds of complaint will be taken as read. You must put forward your own grounds as to why the hedge benefits you and the wider area/environment. The Council Officer will then have to strike a balance between the competing interests of the hedge owner and the complainant.

Your privacy is important. The other thing that springs to my mind from what you say is that a reduction from 8-12m down to 2.7m is excessive. The Council cannot require the removal of or destruction of the hedge. Excessive reduction could kill the hedge. You wouldn't really expect more than 30% reduction in height. Or put a better way, removal of 30% of the leaf area. Which, if the lower branches are dead, and or, the neighbour has cut back their side to brown twigs, will not be the same as a 30% reduction in height. Phased reduction could be a possibility, but the health of the hedge must still be maintained.

The trees or hedge argument is a waste of time. For the purposes of the legislation a hedge is defined as a line of two or more trees or shrubs. Just taking every other one out will not alter its status as a hedge under the legislation. What the Council Officer will have to consider is, is it a barrier to light or access, and what are the effects of gaps in the hedge above 2m from ground level.

jcpreston22 wrote:How would I take it out of the Planning Authority hands and turn it into a Civil Matter for the courts

You can't. It's the responsibility of the Council do deal with high hedge complaints. Your only option would be a High Court Challenge in respect of the decision.

The height of the hedge may well be measured from the base of the trunks. However, if the complainants garden is lower, or higher than this, the changes in levels will be factored into any action hedge height. E.g. if the action hedge height on level ground would be 8m and the complainants garden was 2m lower than the base of the hedge, the action hedge height would be reduced by 2m to 6m. If the action hedge height on level ground would be 8m and the complainants garden was 2m higher than the base of the hedge, the action hedge height would be increased by 2m to 8m.

The LA planning permission pre-dated the high hedges legislation so could not take into account legislation which may be passed in the future. The purpose of the high hedges act was to prevent one neighbour from imposing conditions on the garden of another. The planning authority were considered to be the appropriate arbiter of disputes in order to keep such disputes out of the courts.

The pre legislation situation was that house owners seeking privacy often intentionally "bullied" adjoining owners by cultivating fast growing trees (often leylandii) which both shaded and undermined the adjoining houses and severely compromised garden use and access to light. The subsequent neighbour disputes which arose often led to high legal costs and I was involved in a case where the legal fees exceeded £250,000.

In a society which has a growing population and limited space there is increasing pressure on individual privacy due to house building. Your house is at the sharp edge of this issue. The planning authority has exercised its duty and have found against you. If you were to find a way to refer this matter to the court I have little doubt that the court would rely on the planning authority's expert finding unless you could show their decision to be unlawful or abuse of process. Your case is not helped by the fact that your loss is financial rather than a loss of amenity. A view of your house from other dwellings may not be as private as you would like but, within the current processes, your privacy would be considered to be less important than loss of light to your neighbour caused by an evergreen hedge of, ultimately, almost unlimited height.

I am not unsympathetic to the need of retired persons to maintain their income from investments but the effcts of shading and loss of light on the neighbour's living space will supplant any financial argument which you may advance.

I am sure that you do not want the stigma of an ASBO. Equally I am sure that the legal cost of what will almost certainly be an unsucessful legal action will exceed the financial rental reduction and property value losses which will result from compliance with the planning authority decision.

My best advice is to you is to accept that you were at the wrong location at the wrong time, and comply before the losses to you increase beyond an acceptable level.

best regards

Alan Harris

Alan Harris

Alan is a consulting engineer specialising in subsidence, tree roots, soils and party wall surveying.